Sinohydro Corporation Limited v Gufu & 34 others (Appeal E001, E002 & E035 of 2022 (Consolidated)) [2023] KEELRC 2002 (KLR)
The bottom line
#Kenya's Employment Court refused to let an employer add new documents on appeal that it already had during the trial.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to admit additional evidence on appeal
The ELRC Act and its Rules are silent on admitting new evidence at the appellate level, so the Court derives the power from Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules.
Section 12(1) of the ELRC Act donates exclusive original and appellate jurisdiction over employment disputes, but the Act and the 2016 Rules contain no provision on adduction of new evidence on appeal. The Court therefore sought guidance from Section 78 of the Civil Procedure Act, which empowers an appellate court to take additional evidence, and from Order 42 Rules 27–29, which prescribe the thresholds, mode and limits for taking such evidence.
Whether the supplementary Record of Appeal met the threshold for admission of new evidence
The application did not meet the threshold: the documents were in the applicant's possession at trial, no proof was tendered that they were handed to former advocates, and the witness never sought to produce them at hearing; the application is an attempt to patch gaps.
The applicant's pleadings at trial contained only mere denials, and its list of documents included PAYE, NHIF and NSSF records. The applicant admitted the documents now sought to be adduced were in its possession. It offered no proof of delivery to its former advocates and no explanation why its witness, Mr Zhang Yang, did not produce them during the hearing. Applying Order 42 Rule 27(1) and the Ladd v Marshall criteria as adopted in Tarmohamed and Wanjie v Sakwa, the Court found the evidence obtainable with reasonable diligence at trial and the application a ploy to improve its case on appeal.
Legal principles established
#- A court can admit new evidence during an appeal, but the evidence must meet the thresholds in Order 42 Rule 27(1) — refusal by the trial court to admit evidence which ought to have been admitted, or the appellate court requiring the evidence to pronounce judgment or for other substantial cause — and the court must specify the limits and mode of taking it.
- Additional evidence on appeal must not be used to fill gaps or enable a party to make out a fresh case; the power should be exercised sparingly and with great caution.
Court orders
#- 1.The Appellant's Notice of Motion dated June 12, 2023 is dismissed with costs to the respondents.
- 2.The appellant is given 21 days from the date of the ruling to comply with directions given on March 1, 2023, to file and serve written submissions to dispose of the consolidated appeals.
- 3.The Appeals to be mentioned during a virtual court session on September 27, 2023 to take a date for judgment.
- On appeal from
- Trial Court (not specified by name in the judgment)
- Jurisdiction invoked
- Sections 12(3)(viii) and 20(1) of the Employment and Labour Relations Court Act; Rule 23 of the Employment and Labour Relations Court Rules; Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 & 29 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sinohydro Corporation Limited v Gufu & 34 others (Appeal E001, E002 & E035 of 2022 (Consolidated)) [2023] KEELRC 2002 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2002/eng@2023-08-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.